K.N.BASHA,CHAIRMAN - (1.) THE applicant preferred this application seeking for the relief of removal of the trade mark under sections 19, 47, 57 and 125 of the Trade Marks Act, 1999 (hereinafter referred as the Act) in respect of the impugned trade mark No. 1146955 in class 24 in the name of M/s. Mehta Fabrics, 344/2, Somwar Peth, Madhavnagar -416406 (Dist. Sangli).
(2.) THE case of the applicant is that they are doing business in the name and style as M/s. Anand D/B Mills having office at 4/110, New Cloth Market, Ichalkaranji -416115 (Dist. Kolhapur). The applicants are the prior user and original adopters of the trade mark SEN GUPTA registered under No. 1144323 in class 24 in respect of Dhoties and Textile piece goods. They are using the trade mark from 1985. They have registered the said trade mark as per registration No. 1144323 in class 24 dated 18/10/2002 produced as Annexure to Exhibit A'. They came to know about the impugned mark SENGUPTA of 1st respondent through advertisement in the Trade Mark Caution Notice regarding registration of the impugned trade mark as per Registration No. 1146955 published in the New Paper "Dynik Mahasatta" dated 09/10/2007, which they have produced as Annexure to Exhibit B'.
(3.) THEREAFTER , the applicants preferred an application dated 15/11/2007 before the Registrar of Trade Marks namely the 2nd respondent under RTI Act, 2005, seeking details as to whom the impugned trade mark SEN GUPTA in the name of the 1st respondent was accepted. The 2nd respondent sent a reply on 30/11/2007 which was produced as Annexure in Exhibit D'. It is stated in the said letter that the goods were not properly published in the Trade Marks Journal No. 1346 dated 16/04/2006 and accordingly corrigenda was issued for the goods as per Form TM -1 of the applicant which was published in the Trade Marks Journal No. 1381 dated 01/12/2007. The main grounds taken by the applicant is that the impugned trade mark was obtained by the 1st respondent by playing fraud and misleading the Registrar i.e. the 2nd respondent. The registrar has not verified the existence of a similar trade mark of the applicant in the register of Trade Marks. The 2nd respondent has committed mistake by giving advertisement without even specifying the nature of goods and has given the second advertisement realizing the mistake. When the applicant have made an attempt to oppose the impugned trade mark of the 1st respondent, the same was refused to be accepted by the 2nd respondent.;